Central Administrative Tribunal - Delhi
Rajender Ram S/O Sh. Anant Kumar vs Union Of India Through on 28 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.No.2881 of 2010 M.A.No.2259 of 2010 New Delhi, this 28th day of February, 2012 Honble Dr. Dharam Paul Sharma, Member (J) 1. Rajender Ram s/o Sh. Anant Kumar, R/o Q. No.1213, MS, Timarpur, Delhi 54. 2. Ashok Kumar S/o Sh. Mawshi Ram, R/o Q. No.1090, MS, Timarpur, Delhi 54. 3. Late Sh. Jangi Rai through LR Smt. Itwaria W/o late Sh. Jangi Rai, Q.No.53, NICD, Delhi. 4. Daulat Ram s/o Ram Singh H.No.WZ-602, Nangal Raya, N. Delhi-46. 5. Sanjeev Kumar S/o Sh. Dhayan Chand H.No.48, Jodhpur Mess, Pandar Rd. N. Delhi-3. 6. Sh. Bijender Singh S/o Shri Jaya Ram, V. & P.O. Goga, Delhi-39. 7. Sh. Maan Singh Meena S/o Sh. Suraj Mal Meena RZ-60, Dabri Ext., Sagarpuri, N. Delhi. 8. Rajan Prasad S/o Sh. Moti Lal, 34/400, Pachkunya Rd., RK Ashram Marg, Delhi-01. 9. Brij Kishore Mehato S/o Sh. Ramanand Mehato Qtr. No.210, Type-1, Timarpur, Delhi-54. Applicants. (By Advocate : Shri Shrigopal Aggarwal) Versus 1. Union of India through The Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi. 2. Director General of Health Services, Nirman Bhawan, New Delhi. 3. Director, National Centre for Disease Control (Directorate General Health Services) 22, Sham Nath Marg, New Delhi-54. Respondents (By Advocate : Shri N.K. Aggarwal) (Orders Reserved on 31.01.2012) O R D E R
This is the second round of litigation between the parties. The applicants, working as Chowkidars in National Centre for Disease Control (in short NCDC) have earlier filed OA No.168/2009 praying for the same reliefs as are prayed in the present Application. The said OA has been disposed of vide Order dated 6.10.2009, by issuing directions to the first and second respondents to consider the case of the applicants afresh for grant of Patient Care Allowance (in short PCA) and if the case of the applicants does not find favour with the respondents, the respondents would pass a speaking order as to why the applicants are not found eligible for grant of PCA when similarly situated employees in other institutions under the first respondent have been granted this benefit. These directions have been directed to be complied with within a fixed time frame as mentioned in the said Order. In compliance with these directions, the respondents have passed the impugned order dated 25.5.2010, as at Annexure A-1, whereby it has been held by the respondents that the PCA could not be granted to the applicants for the reason, inter alia, that the applicants duties do not involve continuous routine contract with patients affected with communicable diseases nor do they handle any infected materials, instruments and equipments which can spread infection and, therefore, the applicants do not fulfill the eligibility conditions for grant of PCA. As regards the applicants contention that Chowkidars in other institutions have been given the benefit of PCA, it has been observed that the category of Chowkidar in NCDC was not included for PCA in the letter dated 2.1.1999 issued by the Ministry of Health and Family Welfare.
2. The present Application, jointly filed by nine applicants, is directed against the aforesaid order of the respondents dated 25.5.2010, praying for its quashing and issuance of further directions to the respondents to consider the case of the applicants for grant of PCA from the date they become entitled thereto with consequential benefits, including arrears with interest.
3. The applicants are employed as Chokidars in Group D post in the office of erstwhile National Institute of Communicable Diseases, now renamed as National Centre for Disease Control. The respondents introduced Patient Care Allowance in the year 1998. The said allowance has been given to the employees working in Groups C and D categories in certain health care delivery institutions/establishments subject to certain conditions. While this allowance has been extended to Chowkidars working in certain institutions such as National Vector Borne Disease Control Programme (NVBDCP), Delhi, RHTC, Najafgarh, RAK College of Nursing, New Delhi, LRHS, Najafgarh and Port/Health Organisation and Port/Airport Health Organisation, same has, however, been denied to the applicants herein. The grievance of the applicants is that their working, duties and responsibilities are identical with the working, duties and responsibilities of their counterpart Chowkidars working in the aforesaid institutions, and, therefore, the applicants too are entitled to the benefit of PCA which has admittedly been extended to their counterparts in other organizations as referred to above but has been wrongly denied to the applicants. The applicants contention is that such denial is not only discriminatory but is a clear case of arbitrary and irrational action which goes against the spirit of Articles 14 and 16 of the Constitution of India. The applicants have been pursuing the case with the respondents right from the very beginning but failed to avail the benefit at the hands of the respondents. Consequently, they have been constrained to take legal recourse for redressal of their grievances. The applicants thus filed OA No.168/209 and the matter was remitted back to the respondents to consider afresh the applicants claim as referred to above within a fixed time frame. The applicants counsel submitted that the respondents sought extension of the prescribed period of compliance of the Tribunals order a number of time, giving impression as if they have been seriously considering the applicants case for implementing the PCA, prompting the applicants herein not to oppose their requests for extension of time. The applicants felt cheated by the ultimate order dated 25.5.2010, impugned in these proceedings, whereby the claim of the applicants has been rejected by the respondents.
4. The legality and correctness of the impugned order has been challenged by the applicants on a number of grounds mentioned in Para 5 of the Application. The impugned order has thus been challenged for it being discriminatory. The PCA has been denied to the applicants while the same has been extended to other similarly placed persons working under the respondents, some of which are being operated from the same Campus under the same Security Officer. The observations made by this Tribunal in OA No.168/2009, which was filed earlier by the applicants herein, are heavily relied upon in these proceedings as well. Reference has also been made to certain cases to bring home the point that the State action must be fair, just and must not be arbitrary with which there is no dispute.
5. Opposing the applicants claim the respondents in their reply have, inter alia, submitted that NCDC, respondent no.3, in which the applicants are working is a research organisation involved in testing of samples of blood, stool, urine etc. of patients, where no patient is admitted as there is no ward or bed for admission of the patient nor there is any doctor or nurse to take care or attend to them. Therefore, the requirement for the grant of PCA, namely having continuous and routine contact with the patients, which may spread infection is not fulfilled by the applicants and, therefore, they are not eligible for grant of PCA. The applicants are only deployed for watch and ward duties and, therefore, their duties neither involve continuous and routine contact with the patients/visitors infected with communicable diseases nor do they handle any infected material, instruments and equipments which can spread infection.
6. The applicants filed their rejoinder in which they reiterated their submissions made in the OA, controverting the respondents contentions in their counter reply, and seeks to make out a case of hostile discrimination by citing certain judgments on the subject and strongly contending that while similarly placed employees working in different wings and control of the same respondents are being given the benefit of PCA, there is no plausible and legitimate justification for not extending it to the applicants.
7. During the course of hearing, the respondents were directed, vide order dated 8.8.2011, to file documents regarding regular duties of the applicants in respect of their contention that the applicants do not come in contact with the patients in normal discharge of their duties and also documents indicating as to what is meant by health care delivery institution along with list of such institutions wherein PCA is being given to the Chowkidars with a brief note distinguishing from the institution in which the applicants are working based on which the applicants are denied the benefit of PCA. Accordingly, respondents filed additional affidavit on 22.11.2011 stating, inter alia, as follows:-
(a) What is meant by Health Care Delivery Institutions Health Care Delivery Institutions/Establishments are those which provide preventive, curative and rehabilitative care services to the population.
(b) The list if institutions, where the Chowkidars are getting PCA is as under, as per MOH&FW letter dated 02.01.1999:
NMEP (now National Vector Borne Disease Control Programme (NVBDCP), Delhi.
Rural Health Training Centre (RHTC), Najafgarh, Delhi.
Raj Kumari Amrit Kaur (RAK) College of Nursing, New Delhi.
Port and Air Port Health Organization, New Delhi.
(C) In so far as National Centre for Disease Control is concerned, it is Public Health Research Institute having the following mandate:-
i) Research Training Healthcare Manpower Development Services As per the above mandate, this Institute provides referral services and technical support to individual patients, community, medical colleges, research institutions and state health care directorates. These includes diagnostic facilities, making available scientific research materials, teaching aids, storage & supply of vaccines and quality control of biologicals.
(d) That this Centre does not have indoor bedded facility to the patients. The applicants Chowkidars do not come in contact with the person bringing samples of urine, stool, blood for tests to the Institute. Patients just handover the samples and go away.
(e) That vide MOH&FW letter dated 04.02.2004 addressed to Director General of Health Services (Annexure-I), PCA is admissible to the Group C & D (Non-Ministerial) employees excluding nursing personnel in the health care delivery institutions/establishment (other than hospitals) having less than 30 beds, but with National Centre for Disease Control (NCDC) there are no beds. Similarly PCA shall not be allowed to any of the Group C & D categories of employees, whose contact with patients or exposure to infected materials is of an occasional nature.
(f) It is further submitted that vide letter No. 27-9/2010-Estt. Dated 16.09.11 addressed to the Govt. Counsel by NDCD (Annexure-II), the last para of the said letter is as under :
However, regarding duties of Chowkidar as asked by Honble CAT, New Delhi vide Dasti Order dated 30.08.2011, I am directed to state that the duties of Chowkidar at this Institute is to watch and ward of Govt. property and they are posted at different gates/security points in Administration Block, Laboratory Block, Hostel etc. at this Institute. On the strength of the aforesaid premises, the respondents have submitted that PCA cannot be allowed to any of the Group C & D categories of employees like the applicants whose contacts with visitors/patients or exposure to infected material is not there. However, the respondents have not clarified as to on what basis Chowkidars in NVBDCP, RHTC, RAK College of Nursing, Port and Air Port Health Organizations have been given the benefit of PCA and in what manner the job of the Chowkidars in these institutions is different from that of the applicants, especially when the post of Chowkidars is meant for watch and ward duty as the nomenclature of the post suggests by itself.
8. Both the parties submitted their written submissions in the matter. It has thus been submitted by the applicants that PCA is indeed being paid to the Chowkidars of certain institutions such as (NVBDCP), (RHTC), Raj Kumari Amrit Kaur (RAK) College of Nursing Port and Air Port Health Organization etc. The conditions based on which the applicants are denied PCA, also exist in the case of these institutions where Chowkidars are being paid PCA. Thus, some of these institutions are Research, Training and Teaching institutions having no bed and regular patients, and the duty performed by the Chowkidars therein are similar to the one performed by the applicants herein. If Chowkidars in these institutions can be paid PCA, there is no reason as to why the applicants be not given the said allowance. The applicants counsel has produced salary slips of certain Chowkidars in these institutions who are in receipt of PCA showing payment of PCA to these Chowkidars. The respondents have also given PCA to certain categories of Chowkidars in these institutions pursuant to the orders passed by this Tribunal in various OAs. Even the Director of the Institute wherein the applicants have been working recommended the case of the applicants stating that the applicants share the same working environment as that of their other colleagues to whom patient care allowance has been extended yet the applicants are illegally denied the benefit. The applicants counsel therefore made a very strong plea for quashing the impugned order and directing the respondents to pay the applicants PCA from the due date with consequential benefits, including arrears along with interest.
9. The learned counsel for the respondents on the other hand laid more emphasis on the nature of duties of the applicants pertaining to watch and ward without involving contact in routine with the patients and infected materials that can spread infection rendering them ineligible for grant of PCA under the administrative instructions on the subject. The learned counsel has drawn my attention to para 6 of the impugned order whereby all concerned have been advised that since the classification and nature of duties of Group C and D posts differ from one organisation to another organisation, it is for the respective Divisions in the Directorate to examine the demand for grant of payment of HPCA/PCA to the employees working in organizations under their jurisdiction and decide their eligibility in consultation with Internal Finance Division. No priori approach is warranted in the matter, as each case has to be decided on its own merits having regard to the guiding principles contained in the official circular providing for PCA.
10. I have carefully considered the respective submissions of both the parties. I have also carefully perused the records of the case.
11. The impugned order has admittedly been passed in compliance with the directions issued by this Tribunal in OA NO.168/2009. The backdrop in which the matter was remitted back to the respondents for consideration afresh needs to be borne in mind in this regard. This Tribunal has made the following observations in Para 5 of its order dated 6.10.2009 which reads as follows:-
5. It emerges from the above mentioned facts that in many research and training institutions, mentioned in the preceding paragraphs, the PCA is being given to Chowkidars and other staff who, it appears, prima facie, would not come within the ambit of the guidelines of the first Respondent, issued on 4.02.2004, advertence to which has been made above. Since the Applicants are similarly situated, this is discriminatory, especially when the third Respondent had recommended to the second Respondent, the case of the Applicants for grant of PCA under the guidelines of 4.02.2004. A plain reading of the aforesaid reveals that although the job profile of Chowkidars in general does not prima facie come within the ambit of the guidelines of the respondents dated 4.2.2004, yet as a matter of fact, Chowkidars in certain institutions are given the benefit of PCA while the same is being denied to their counterparts in other institutions without any rational basis which apparently makes out a case of hostile discrimination, which is not sustainable in law.
12. Let us now see how this aspect has been addressed by the respondents in the impugned order. Para 5 of the impugned order dated 25.5.2010 deals with this aspect of the matter. This para reads as follows:-
5. As regards the contention of the applicants that Chowkidars in other institutions under the first Respondent have been given the benefit of PCA, it may be stated that in the letter No.7-20015/41/98-H (III) dated 2.1.1999 (Annexure-II) issued by the Ministry of Health and Family Welfare, the PCA was extended to Group C and D (Non-Ministerial) employees working in National Malaria Eradiction Programme (NMEP), National Institute of Communicable Diseases (NICD), Rajkumari Amrit Kaur (RAK) College of Nursing, Lady Reading Health School (LRHS), Rural Health Training Centre (RHTC), Najafgarh, Post/Airport Health Organisation with effect from 29th December, 1998. In the said letter, the category of Chowkidar in NCDC was not included for PCA. The only reason ascribed by the respondents for denying the benefit of PCA to the applicants herein who have been working in NCDC is that the category of Chowkidars in NCDC was not mentioned in the list of category of posts eligible for benefit of PCA in the letter No.7-20015/41/98-H (III) dated 2.1.1999. This fact itself is not sufficient to deny the benefit to the applicants. It is relevant to note in this regard that the post of Chowkidar was also not mentioned initially in the category of persons eligible for benefit of PCA who have been working in Lady Reading Health School, Delhi. The Chowkidars working in Lady Reading Health School also filed OA 260/2008 seeking the same benefits which have been sought by the applicants herein. The said OA was disposed of, vide order dated 5.2.2008, at the admission stage itself without going into the merits of the case by directing the respondents to treat the OA itself as a representation and to decide the same by passing a reasoned and speaking order under intimation to the applicants within a period of three months from the date of receipt of a copy of that order. The applicants case in that OA was that vide letter dated 2.1.1999, the benefit of PCA has been extended to Chowkidars in other organizations, namely, NMEP in respect of which the post of Chowkidar has been mentioned at Serial No.17; RHTC, Najafgarh, in respect of which the post of Chowkidar has been mentioned at Serial No.6; and RAK College of Nursing, New Delhi in respect of which the post of Chowkidar has been mentioned at Serial No.15 but due to some typographical error or clerical mistake, Chowkidars of LRHS were not included in the said list. Immediately upon noticing this discrepancy, the matter was taken up with the concerned authority for extending the benefit of PCA to the Chowkidars which was duly supported by the Lady Reading Health School Employees Association as well as Superintendent of the Lady Reading Health School itself. In compliance with the directions of the Tribunal vide order dated 5.2.2008 in OA No.260/2008, referred to above, the respondents extended the benefit of PCA to the applicants along with other Chowkidars vide Office Order dated 6.10.2008. Copies of order dated 5.2.2008 in OA No.260/2008 and orders of compliance dated 25.9.2008 and 6.10.2008 are collectively at Annexure A/9 of pages 54-58 of the paper book of the present Application. It is relevant to note in this regard that the Tribunal directed merely consideration of the applicants representation and did not give any specific direction for grant of extension of benefit of PCA to the applicants therein. Furthermore, in both the cases, the post of chowkidar was not included in the letter dated 2.1.1999 in the categories of the posts eligible for the grant of PCA in Lady Reading Health School as well as National Centre for Disease Control. The impugned order is bad on this count for the reason that it does not indicate as to why the benefit of PCA has been extended to Chowkidars of Lady Reading Health School, Delhi while the same has been denied to the applicants herein whereas in both the cases Tribunal directed to consider for grant of benefit of PCA to all Chowkidars similarly placed for otherwise the respondents action would be discriminatory and as such untenable in law. The facts of the case are identical with the facts of the case of OA No.260/2008. The respondents in their reply have, inter alia, submitted that PCA was sanctioned to the categories of employees involved in patient care and not to Chowkidars vide Ministry of Health and Family Welfare order dated 2.1.1999, a copy of which is annexed to their counter reply as at Annexure R/1. A plain reading of the said letter reveals that there are a number of posts to whom the benefit of PCA has been extended whose job profiles primarily do not satisfy the requirement of policy guidelines of routine contact with patients infected with communicable diseases or as the case may be, handling infected materials, equipments etc. as their primary duty not being of occasional nature as is the case with the Chowkidars herein. To mention some of these posts are the Research Assistant, Statistical Assistant, Technician, Telephone Operator, Electrician, Motor Mechanic, Daftry, Peon, Field Worker, Projectionist, Mali, Cook, Domestic Staff, Gestatenor Operator-cum- Record Keeper, Library Attendant, Store Attendant, Librarian, Record Sorter, besides Chowkidars. The learned counsel for the applicants was unable to give any plausible explanation as to how the conditions based on which the Chowkidars herein are denied PCA, are found to have been satisfied in the cases of such categories of posts, as referred to above, e.g. Research/Statistical Assistant, Draughtsman, Librarian etc.
13. It is further noted that apart from Patient Care Allowance, Hospital Patient Care Allowance is also being given. The conditions for eligibility in both the cases are the same. PCA benefit is given in health care delivery institutions and establishments other than hospitals. The respondents have clarified that health care delivery institution and establishments are those which provide preventive, curative and rehabilitative care services to the population. The National Centre for Disease Control falls in the category of institutions providing preventive care services. This Centre provides referral services and technical support to individual patients, community, medical colleges, research institutions and state health care directorates. These includes diagnostic facilities, making available scientific research materials, teaching aids, storage and supply of vaccines and quality control of biologicals. These Health Care Delivery Institutes are other than the hospitals. Obviously, they would not have any indoor patient bed facilities. In the Centre, persons bring the samples of blood, stool and urine for tests and hand over the samples and go away. In other words, it is Centre providing diagnostic services. However, this fact has been unduly emphasized while denying the PCA in the case of the applicants, whereas in other sister organizations the benefit of PCA has been extended even to Chowkidars, without any rational or plausible justification. The routine contact with the patients, as envisaged in the policy guidelines, embraces within its ambit more than mere physical contact with the patients for otherwise many of the categories of Group C and D employees to which the benefit of PCA has been extended would be rendered ineligible for the said benefit. What seems to be relevant in this regard is the environment involving the presence of patients affected with communicable diseases or of infected material having potential threat of inherent infection itself. The modes and manner of spread of infection could be varied. It is not amenable to exhaustive enumeration. Nevertheless, the environment indeed has the potential of carrying and spreading infection. The persons may get infection through sneezing into ones vicinity, earlier use of urinal or water cooler by persons infected with communicable diseases or even improper keeping of infected material/equipments of Institute rendering the environment itself unhygienic and not necessarily by physical contact with the patients suffering from communicable disease or infected material also. Persons working in such an environment continue to come in routine contact with environmental hazards arising from the presence of persons suffering from communicable diseases and infected materials.
14. It is relevant to note in this regard that recommendations made by Director of the Institute for extension of benefit of PCA to the Chowkidars as well for the reason that they share the same working environment as that of other Chowkidars to whom the PCA has been extended. For better appreciation of the issue, it would be necessary and desirable to reproduce the operative part of the letter of the Director of the Institute dated 8.6.1999 addressed to the Directorate General of Health Scheme:-
Subject: Grant of Patient Care Allowance to staff at NICD Sir, I am directed to refer to government of India/MOH&FW letter No.Z.28015/41/98-H(III) dated 2nd Jan., 99 on the above mentioned subject and to state that some of the non-ministerial categories of Gr. C & D (as mentioned in the enclosed Annexure) staff have been left out from the grant of PCA. Whereas the categories of Statistical Assistant, Draughtsman, Telephone Operator, Mechanic, Daftry, Peon and Chowkidar of NMEP, Projectionist of RKA College of Nursing and Library Attendant of LHMC have been included in the list of categories eligible for the grant of PCA the similar categories at NICD have been denied the same. Moreover none of the ministerial categories have been made eligible for the grant of PCA when all such categories in RML Hospital and CGHS dispensaries are being given PCA. Non-extension of PCA to these left out categories has caused unrest amongst the staff and a number of representations have been received in this regard. Copies of these representations are enclosed for perusal please.
In view of the above, it is requested that left out categories of non-ministerial as well as ministerial as mentioned in the enclosed Annexures may also be considered for grant of PCA as they share the same working environment as that of their other colleagues to whom patient care allowance has been extended.
This has the approval of Director, NICD. The aforesaid does not seem to have received due consideration by the authorities concerned which it deserves. In para 6 of the impugned order, it has, inter alia, been stated that the Directorate GHS advised that since the classification and nature of duties of Group C and D posts differ from one organisation to another organisation, it is for the respective Divisions in the Directorate to examine the demand for grant of payment of HPCA/PCA to the employees working in organizations under their jurisdiction as per the provisions of the aforesaid letter dated 4.2.2004 and decide their eligibility in consultation with Internal Finance Division of Ministry of Health and Family Welfare. Nonetheless, it has nowhere been clarified by the respondents in the impugned order as well as in the pleadings how and in what manner the duties of the post of Chowkidar in one organization is different with that of other. The learned counsel for the respondents could not explain the difference in duties of the applicants working as Chowkidars in NCDC on the one hand and the duties of the Chowkidars in other institutions to whom the benefit of PCA has been extended. The respondents ought to explain as to how the Chowkidars in receipt of PCA have satisfied the requirements of eligibility for PCA and how the applicants failed to satisfy this test. Unless they show this difference, there action under challenge in these proceedings may not be able to face the onslaught of the objection of hostile discrimination and arbitrariness. If the duties of Chowkidar pertain to watch and ward, it would be common in all organizations. Then how benefit of PCA is extended to Chowkidars of one organisation and denied the same to other Chowkidars when both categories of organizations falling to the same category of health care delivery institute having the common backdrop and environment and if the matter is left to the individual organisation then how can the concerned authority ignore the recommendations made by the Director of the Institute referred to above clearly pointing out a case of hostile discrimination. I find support for this in the case of Randhir Singh v. Union of India (1982) 1 SCC618 on which reliance is placed by the applicants counsel. In this case, the Honble Supreme Court, inter alia, held that where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. This has been followed by Delhi High Court in the case of MCD vs. Workman (Mates) and another, 2003 (4) SCT 805.
15. In the facts and circumstances and for the reasons stated above, I am of the considered view that the impugned order is arbitrary and discriminatory and as such not sustainable and the same is accordingly quashed and set aside. For parity of reasons, I direct the respondents to extend the benefit of PCA to the applicants herein who are working as Chowkidars in the National Centre for Disease Control as has been extended to their counterparts in Lady Reading Health School, RAK College of Nursing etc. from the date the respondents find them entitled thereto as per the applicable rules. In view of the ambiguity as is evident from the different pattern is followed in different organizations, I do not consider it a fit case to award any interest on the payment of arrears, if any. The directions as aforesaid should be complied with within a period of three months from the date of receipt of a certified copy of this order.
17. The Application is allowed in the above terms. No order as to costs.
(Dr. Dharam Paul Sharma) Member (J) /ravi/